1. The petitioner has prayed for following relief in para 6(A) of the petition:
“6(A) The Honourable Court be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, direction or order quashing and setting aside the order passed by the respondent No.1 authority dated 4th December, 1999 confirming the order of Director dated 21st April, 1998 and be pleased to direct the respondent authority to expunge with the said adverse remarks for the year 1993-94 and be pleased to direct the respondent authority to give promotion with retrospective effect from the date the juniors of the petitioner are promoted.”
2. It is the case of the petitioner that the petitioner was appointed as Veterinary Officer with effect from 22.4.1976 and was posted at different places from time to time. On 16.3.1990, the petitioner was posted at Bavla as Veterinary Officer under respondent No.3. On 21.4.1994, the petitioner was relieved from Bavla and he joined at Ahmedabad. On 17.4.1997, petitioner received communication dated 15th April, 1997 whereby the petitioner was communicated the adverse remarks made in his confidential report for the year 1993-94. As stated in the petition, in his long service career, except the above stated solitary adverse entries for one year, there is no other adverse entry and entire service career of the petitioner is stainless. When the petitioner was serving at Bavla under respondent No.4 as Veterinary Officer, petitioner had found him misusing the medical drugs in the veterinary polyclinic at Bavla. Since the petitioner has not cooperated in such illegal activities, respondent no.4 was not satisfied and was tempted to make adverse entries in the confidential report only for the year 1993-94. The petitioner brought to the notice of the Regional Joint Director of Animal Husbandry the fact about misuse of the office by respondent No.4 with the help of local social worker and such act on the part of the petitioner has led him inviting adverse entries in the confidential report for the year 1993-94 during which period, he was serving under respondent No.4.
3. There is no reply filed by the other respondents except respondent NO.2. It is pertinent to note here that though adverse remarks are required to be communicated so as to give an earliest opportunity to an employee to represent against such adverse remark, in the present case, such adverse remarks made in the confidential report of the petitioner for the year 1993-94 were communicated to the petitioner after long period of about three years. It is pointed out that under the government guidelines, adverse remarks are required to be communicated within six weeks. However, so far as the petitioner is concerned, the petitioner came to be communicated the adverse remarks just before the Departmental Promotional Committee (“DPC” for short) met for considering the case of the petitioner and other persons junior to the petitioner for the purpose of promotion to the higher post.
4. The petitioner made representation to respondent No.2 the Director on 21st May, 1997 to expunge the adverse remarks. It appears that the representation made by the petitioner on 21.5.1997 was decided by the Director on 26.11.1997, however, without giving any opportunity to the petitioner to represent his case. The petitioner then requested to give opportunity of hearing and it appears that thereafter, hearing was given to the petitioner and thereafter, final decision after hearing was communicated to the petitioner on 4.12.1999. It is pointed out that not only the petitioner was communicated adverse remarks after long period of three years but decision after hearing on representation made against such adverse remarks was also communicated after period of nearly two years. Grievance is made to the effect that the consideration of his representation was also in very mechanical manner.
5. Respondent No.2 has, in his reply, stated that the Director of Animal Husbandry is the appropriate authority to take decision on the adverse remarks made by the Deputy Director. It is stated that the DPC did not consider the case of the petitioner for promotion due to adverse remarks in the confidential report of the petitioner. It is stated that the representation of the petitioner was considered and hearing was afforded and after careful consideration, his representation was decided and was accordingly communicated to the petitioner. In fact, against the record, statement is made to the effect that the adverse remarks were communicated to the petitioner within six weeks. Statement made in the affidavit runs as follows:
“I deny the contention of the petitioner that the adverse remarks was not conveyed within six weeks”
In para 8 of the affidavit in reply, the deponent has stated that the DPC has to consider five years confidential remarks at the time of promotion for Class II Post. The DPC meeting was held in 1997 and at that time, the confidential remarks for five years were considered for the eligible candidates. It is further stated that due to adverse remarks in the confidential report for the year 1993-94, the case of the petitioner was not considered for promotion to the higher post.
6. Learned Advocate Ms. Vyoma Jhaveri for the petitioner has made following submissions :
(a) Adverse remarks against the petitioner is for solitary year of 1993-94 and all throughout, the long service career of the petitioner has remained stainless.
(b) There is no denial or reply to the allegation made by the petitioner to the effect that since the petitioner made complaint against respondent No.4, under whom the petitioner was serving, the petitioner was subjected to adverse entries in his confidential report during the period of 1993-94 when he was serving under respondent No.4.
(c) Adverse remarks were communicated to the petitioner after a period of about three years. Since the adverse remarks were communicated to the petitioner after unreasonable delay, such adverse remarks should not have been taken into consideration against the petitioner because the very purpose of communication of adverse entry within reasonable period would stand frustrated on the ground of delay in communication of adverse entries. Learned advocate for the petitioner relied on the following two decisions of Hon'ble the Supreme Court:
(i) State of Haryana versus Shri PC Wadhwa, reported in AIR 1987 SC 1201. While emphasizing on paragraph 14 of the said judgment, learned advocate Ms. Jhaveri submitted that Hon'ble the Supreme Court has not approved the communication of adverse entries after inordinate delay because the very purpose of communication of adverse entries would not be in consonance with the spirit and object of the rules framed for communication of such adverse entries.
(ii) Baidyanath Mahapatra versus State of Orissa and another, reported in AIR 1989 SC 2218. Relying on the observations made by Hon'ble the Supreme Court in para 6 of the judgment, she submitted that Hon'ble the Supreme Court has delved on the importance of communication of adverse entry within reasonable period.
(d) Communication of adverse entries after inordinate delay of three years has greatly prejudiced the case of petitioner because when the DPC met for the purpose of considering his case for promotion, his case was not considered solely on the ground that the adverse entries were made in the confidential report of the petitioner for the year 1993-94. Except the adverse entries for this solitary period, there are no any other adverse entries in the service record for the last five years which were considered by the DPC for considering eligible candidate for promotion.
(e) Since the communication of adverse entries was after a period of three years and since there was no other adverse entry or inquiry pending against the petitioner at the relevant time, case of the petitioner for promotion was required to be considered along with his juniors ignoring adverse entries made in the confidential report of the petitioner.
(f) Adverse entries made in the confidential report of the petitioner as could be found from the communication dated 15.4.1997 are vague in nature and do not relate to any doubtful integrity of the petitioner. Communication of such adverse entries after such inordinate delay should not have come in the way of the petitioner for considering his case for promotion.
Adverse entries should not be allowed to stand as they are in the confidential report of the petitioner because since they were communicated after a period of three years, such adverse entries would go in the stale box and cannot be taken into consideration at all and, therefore, such adverse entries are required to be expunged and struck off from the confidential report of the petitioner.
(g) Last but not the least is that the decision of the Director on the representation of the petitioner against the adverse entries is not fair decision. First communication dated 26.11.1997 speaks the way in which representation of the petitioner was considered by the Director. It clearly appears that the hearing which was granted after the first decision dated 26.11.1997 was hearing in a mechanical manner without application of mind and in fact, no grounds urged by the petitioner were ever dealt with for deciding the petitioner's representation against the adverse remarks and, therefore, adverse entries are required to be struck off from the confidential report of the petitioner and the case of the petitioner for promotion to the higher post is required to be considered ignoring adverse entry with effect from the date when case of juniors to the petitioner was considered by the DPC, that is in the year 1997.
7. As against the above said submissions made by the learned advocate Ms. Jhaveri, learned AGP Mr. Rahul Dave submitted that though there is delay in communication of adverse entries, but in any case, adverse entries were communicated before the DPC met. He submitted that the moment it came to the notice of the authority that the adverse entries remained to be communicated before the DPC could met, immediately adverse entries came to be communicated to the petitioner. He submitted that the petitioner is not prejudiced in any manner by late communication of the adverse entries. Therefore, learned AGP Mr. Dave submitted that even if the adverse entries are stale in nature because of late communication, it was not that the petitioner was automatically entitled for being considered for promotion to the higher post. He submitted that the representation of the petitioner against the adverse entries was well considered by the higher authority and found not to disturb the adverse entries. He therefore submitted that the adverse entries are not required to be expunged or struck off from the confidential reports of the petitioner for the year 1993-94.
8. I have heard the learned advocates for the parties. I have perused record of the case. I find that none of the adverse entries made for the period from 1.4.93 to 31.3.94 is pointing out finger as regards doubtful integrity of the petitioner. In fact, if the adverse remarks are closely looked into, then, it would suggest about zealousness and enthusiasm on the part of the petitioner of seeking advise for completing particular work. From the adverse entries, it could be seen that the petitioner has made habit of repeatedly asking for guidance from the higher officer. Against item-7 in the communication dated 15.4.97, adverse entry is made to the effect that the petitioner is not honestly performing the work entrusted to him. It appears that such remark is as vague as it could be and it has been made just to brand the petitioner as not a straightforward person. Against item No. 1, adverse entry made is to the effect that the the Director of Animal Husbandry has determined the Job Chart of the work of the officer of the Veterinary Polyclinic according to which the petitioner has not performed the duties. However, except such general statement in the adverse remarks, no other discussion is found. Though detailed explanation was given by the petitioner in his representation against each of the adverse entries, no other discussion is found while deciding representation of the petitioner. It therefore appears to this Court that the communication of such adverse entries to the petitioner had already lost their efficacy when such entries were communicated to the petitioner after inordinate delay of about three years. Except these adverse entries in solitary year of 1993-94, nothing has come on record to suggest that the petitioner was not the straightforward or honest officer. The petitioner has made specific averment in the petition that in his entire service career, there is no other adverse entry nor his service career is otherwise stained by any other adverse report or inquiry. In the affidavit in reply, it is stated that the confidential reports for five years are being considered for considering case of eligible candidates for promotion to the higher post. The case of the petitioner was not considered for promotion only because of the adverse remarks in the solitary year 1993-94. For remaining four years or any other year, there is no adverse remark against the petitioner. It is also pertinent to note that the adverse remark came to be communicated to the petitioner just before consideration of the case of the petitioner and other junior employees by the DPC. At this stage, it is also required to be noted that the allegations made against respondent No.4 have remained uncontroverted. Therefore, it appears to this court that there was no justification in not considering the case of the petitioner when the DPC had met just because the adverse entries were made in the confidential report of the petitioner for the solitary year 1993-94. In fact, this court is of the opinion that the adverse entries which were communicated to the petitioner after inordinate delay of three years could not be allowed to stand in the confidential report of the petitioner as such entries are required to be treated as stale entries. Therefore, such adverse entries could not have been relied against the petitioner for denying him promotion when the cases of his junior were considered by the DPC.
8.1. The Hon’ble Supreme Court in the case of M.A. Rajasekhar Vs. State of Karnakata And Another, reported in 1996(7) Supreme p.21 has held that when integrity of the employee is not doubted, but when such acts dispassionately when faced with dilemma, he should be given an opportunity and must be guided by the authority. Adverse remarks made in such cases were found to be not consistent with law. In it another decision, in the case of Sukhdeo Vs. Commissioner, Amravati Division and Another, reported in 1996(4) Supreme 756, the Hon’ble Supreme Court has laid down that before making remark, causing jeopardy to the service of the officer, full information should be collected and adverse remark should not be vague. Employee should be given opportunity for improvement and officer making adverse remark should show objectivity, impartiality and fair assessment without any prejudice.
8.2. As discussed above, adverse remark against the petitioner was for the solitary year of 1993-94, but were vague in nature and no immediate opportunity was given to the petitioner as regards adverse remarks to improve upon. In fact, adverse remarks were communicated to the petitioner after a period of three years, i.e. at the stage when his case was due for promotion by DPC.
9. In view of this position, this petition is required to be allowed. Accordingly, it is allowed. Adverse remarks made in the confidential report of the petitioner for the year 1993-94 are treated as stale entries in the confidential report of the petitioner and are ordered to be struck off from the confidential report of the petitioner. Respondents are hereby directed to consider case of the petitioner for promotion to the post of Assistant Director ignoring adverse entries as on the date the cases of juniors of the petitioner were considered for promotion that is in the year 1997 and after considering case of the petitioner for promotion at par and on the date when the juniors were promoted, the respondents shall pass necessary orders for giving deemed date of promotion and other consequential benefits. Aforesaid exercise shall be completed by the respondents within the period of three months from receipt of this order. Rule is made absolute to the aforesaid extent with no order as to costs.
an vyas Sd/-
(C.L.Soni,J.)